Knickerbocker Ice Co. v. Kirkpatrick

51 Ill. App. 60, 1893 Ill. App. LEXIS 512

• Court: Appellate Court of Illinois
• Decided: August 4, 1893
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

The case made by the appellant is that it furnished brick, lime and cement to one Bogan for a building that he, under a contract with the appellee named above, built for her. That January 30, 1890, it served upon her a notice pursuant to section 30 of the lien act, and the next day filed this petition for a mechanics’ lien.

The question is whether the suit is premature. Such a notice is a condition precedent to a lien by one who furnishes material to a contractor, except in case the owner has received from the contractor a statement under section 35. If the owner has received such statement the statute does not, in terms, prescribe how or when the material man may enforce his lien, and we shall not attempt a solution of that question.

But where the notice is given, as was done here, section-37 provides' that “ if the money due to the person giving such notice shall not be paid within ten days after service thereof, * * * or within ten days after the money shall become due and payable, and any money shall then be due from such owner to the original contractor, then such person may file his petition and enforce his lien,” etc.

If no money is then, but thereafter becomes due to the original contractor, another question may arise, not presented by this record, as to when the petition may be filed.

The alternative of ten days after notice, or ten days after due, is for the ease of the owner; that he shall have ten days, at least, in which to pay, and if the money is not due from the contractor when the notice is served, then ten days after it is due. The petition was filed too early.

As the lien and the manner of its enforcement are purely matters of statutory regulation, the statute must be complied with. The decree dismissing the petition is affirmed.